Appeals from the United States District Court for the Northern District of Illinois. No. 80-CR-647 -- John Powers Crowley, Judge.
Before Bauer, Circuit Judge, Gibson, Senior Circuit Judge,*fn* and Posner, Circuit Judge.
Arshad Ali Malik and Khalid Yousaf Malik appeal their convictions and sentences relating to the importation and distribution of heroin in violation of 21 U.S.C. §§ 841(a)(1), 846, 952(a), 963 (1976). We affirm the convictions and sentences.
On September 24 or 25, 1980, United States customs agents discovered heroin packed inside baseballs in a shipment that had arrived at O'Hare Airport in Chicago, Illinois, from Pakistan. Federal agents contacted the addressee, Javed Butt, who said the shipment was for Arshad Ali Malik (Ali). Butt told agents about arrangements for the transfer of the baseballs to Ali. On October 16, 1980, Butt met Ali and gave him a shopping bag with the baseballs in it. Ali met Khalid Yousaf Malik (Yousaf) and gave him the bag with the baseballs. The Maliks went into an apartment. Ali left the apartment a few minutes later and was arrested by a federal agent. A few minutes thereafter Yousaf left the apartment and he too was arrested. Federal agents later searched the apartment pursuant to a search warrant, and found the baseballs. They seized the baseballs, other items in the Pakistani shipment, and papers and documents of the Maliks.
The Maliks were taken to the Metropolitan Correctional Center (MCC), where they had conversations with another inmate which produced damaging evidence. The inmate, Michael Richards, had been an informant for the FBI regarding the interstate transportation of stolen property. The FBI had promised Richards, who was Scottish, air fare to England. The FBI learned that Richards was a bank robbery suspect in Scotland. On October 16, 1980, FBI agents served Richards with an extradition warrant and placed him under arrest. Richards was placed in the MCC. Richards at this point was upset with his arrest and incarceration, apparently believing that he deserved better treatment from the FBI.
The Maliks had several conversations with Richards between October 16 and October 30. The Maliks tried to make a deal with Richards in which Richards would supply bond money for the Maliks in exchange for heroin. During the course of the conversations they told Richards how they imported heroin in baseballs, and that the heroin was so potent it killed a user. Richards then realized he might be able to help himself by providing the FBI with the information he received from the Maliks.
Just prior to October 30, Richards attempted to call an FBI agent with whom he had worked when he was an informant. The agent was not in, so Richards left messages asking the agent to call him. On October 30, that agent and another FBI agent met with Richards. Richards told the agents about the conversations with the Maliks. The agents told Richards to keep his ears open. Subsequently, Richards met with Drug Enforcement Administration (DEA) agents and Assistant United States Attorneys, describing his conversations with the Maliks. The DEA agents agreed to tell British authorities about Richards's cooperation.
After Richards had more conversations with the Maliks and government authorities, the DEA provided some of Yousaf's bond money. Richards had told Yousaf the money was supplied by a friend of his, and Yousaf had agreed to give the friend heroin in exchange for the bond money. On December 10, 1980, Yousaf was released on bond and was met by a DEA agent who identified himself as Richards's friend. Yousaf did not deliver heroin, but told the agent he could supply him with 100 kilograms per month. When it appeared that Yousaf was not going to deliver heroin, the agent had another DEA agent approach and arrest Yousaf. After his arrest, Yousaf told the agents he would tell them where the heroin was if they would not prosecute him.
The Maliks moved for dismissal of the indictments or suppression of the evidence based on the Government's post-arrest activities. The district court denied these motions. The Maliks reached a plea agreement wherein they pleaded guilty but reserved the right to withdraw their pleas if an appellate court granted them relief. The district court sentenced each defendant to concurrent fifteen-year sentences on each count in which he was named, and ordered that defendants receive special parole terms requiring their deportation upon their release. The district court said it was imposing the sentence because: "I think prison sentences, in many cases, might send a message, and I think we should send a message to the people in the Mideast that if they come to the United States and they engage in this kind of conduct, they are going to be severely punished."
The Maliks raise four points on appeal. Their principal contention is that the Government created a situation in which Richards was likely to induce incriminating statements, in violation of the Maliks' right to counsel. The district court found that Richards was a Government informant, except between the time of his arrest (October 16) and his meeting with the FBI (October 30), so the Maliks' appeal is focused on the October 16-30 time period.
The parties agree that where a defendant has been formally charged and the Government deliberately elicits incriminating statements from the defendant, such statements are inadmissible because they were attained in violation of the defendants' right to counsel. See United States v. Henry, 447 U.S. 264, 274, 100 S. Ct. 2183, 2189, 65 L. Ed. 2d 115 (1980); Massiah v. United States, 377 U.S. 201, 206, 84 S. Ct. 1199, 1203, 12 L. Ed. 2d 246 (1964). In Henry, Government agents contacted an inmate at the jail where Henry was awaiting trial for a bank robbery. The inmate had been an FBI informant in the past. The record did not make clear whether the inmate was contacted for the purpose of acquiring information about Henry. During the course of the contact, a Government agent told Henry to be alert to statements made by other prisoners, but not to initiate conversations with Henry about the robbery. The inmate later provided the agent with information which incriminated Henry and was paid.
In determining that the informant's statements were inadmissible as a violation of Henry's right to counsel, the Court characterized the issue as whether a Government agent deliberately elicited incriminating statements from Henry. 447 U.S. at 270, 100 S. Ct. at 2187. The Court noted three important factors: (1) the inmate was acting under instructions as a paid informant of the Government, (2) the inmate was ostensibly no more than a fellow inmate of Henry's, and (3) Henry was in custody when he made the statements. Id. The last two factors are clearly present in the instant case. The district court held a hearing on the presence of the first factor and concluded that Richards was not an informant acting under instructions from the Government from October 16 to 30. To find for the Maliks, we must either reverse ...